Analysis

A deep dive into Proposition 54

By approving Proposition 54, California voters decided to shine a spotlight on the Legislature’s internal proceedings.

The measure, a constitutional amendment, prohibits the Legislature from passing any bill unless it has been in print and published on the Internet for at least 72 hours before the vote, except in limited cases of public emergency. It requires the Legislature to make audiovisual recordings of all its proceedings — except closed-session proceedings authorized by law — and post them on the Internet.

It’s seemingly straightforward, but Proposition 54 leaves unanswered key questions of timing and transparency that will have to be resolved.

Proposition 54, officially called the California Legislature Transparency Act, also allows anybody to record proceedings by audio or video means. Finally, the measure approved Nov. 8 allows recordings of legislative proceedings to be used for any legitimate purpose without payment of any fee to the state.

It’s seemingly straightforward, but Proposition 54 leaves unanswered key questions of timing and transparency that will have to be resolved.

The new procedures carry a potential price tag for state government of $1 million to $2 million annually, according to the Legislature’s nonpartisan fiscal adviser, the Legislative Analyst, and the governor’s budget writer, the Department of Finance.

They estimate another $1 million in costs to make the material available through the Internet.

A wide variety of groups actively supported the adoption of Proposition 54, including the California Chamber of Commerce and Common Cause. The main financial backing for Proposition 54 — more than $10.6 million, according to state disclosure records — came from Charles Munger Jr., a Stanford University physicist and the son of Charles Munger, the partner of billionaire investor Warren Buffett.

As a matter of constitutional separation of powers, the courts have left the internal operations of the Legislature to legislators themselves to determine.

But the people can change the state constitution in order to impose new or different rules on the Legislature. And that is what voters have done by approving Proposition 54 nearly 2-to-1.

Does the new language mean now that a bill may not pass either house’s floor without the bill having been in print at least 72 hours?

For those in the Capitol community who want to review the legal language, here it is: Proposition 54 amended Article IV, Section 8(b) of the California Constitution related to the 72-hour requirement.

This amended section now reads as follows:

“(b)(2) No bill may be passed or ultimately become a statute unless until the bill with any amendments has been printed, and distributed to the members, and published on the Internet, in its final form, for at least 72 hours before the vote, except that this notice period may be waived if the Governor has submitted to the Legislature a written statement that dispensing with this notice period for that bill is necessary to address a state of emergency, as defined in paragraph (2) of subdivision (c) of Section 3 of Article XIIIB, that has been declared by the Governor, and the house considering the bill thereafter dispenses with the notice period for that bill by a separate rollcall vote entered in the journal, two thirds of the membership concurring, prior to the vote on the bill.”

But this new constitutional requirement raises questions:

–First, Proposition 54 adds “no bill may be passed” to the existing language. Under the custom and practice of both the Assembly and Senate, this provision has been applied to the floors of each house (but not to committees). Does the new language mean now that a bill may not pass either house’s floor without the bill having been in print at least 72 hours?

In other words, does this requirement apply both at the house-of-origin deadline as well as the end-of-session deadline? Or does it apply any other time a bill is taken up on either floor of the Legislature? However, later in this sentence is another new provision, “in its final form.”

Do legislators know whether the bill passing off the floor of its house of origin is actually in its “final form”?

–Second, Proposition 54 declares no bill may “ultimately become a statute” unless it complies with the 72-hour requirement. Is this language duplicative of the earlier requirement of the bill being in its “final form,” or is this a different requirement? Does this mean the 72-hour notice applies only to the final floor vote right before the bill is sent to the governor’s desk?

Proposition 54 adds the additional requirement that the amended bill must now be published on the Internet, which usually occurs the evening of the same day that the bill was amended.

–Third, the ballot measure adds the word “any” before amendments, which means it would apply to both substantive and technical amendments (e.g., chaptering out language). While the proponents of Proposition 54 clearly intended to address the perceived problems with last-minute “gut-and-amend” measures, they probably did not mean to apply the 72 hours’ notice requirement to purely technical amendments. Nonetheless, the language of Prop. 54 captures both types of amendments.

Whether intended or not, the language does not distinguish the type(s) of amendments to which the limitation now applies. And by using the term “any amendment,” that appears quite clear. As such, bills with conflicting or duplicative amendments will need to be reconciled at an earlier time in the legislative process and will not be able to be amended in the final three days of the legislative session.

–Fourth, the ballot measure requires the amended bill to be printed, distributed to the members, and published on the Internet. Existing law already requires the amended bill to be printed and distributed to legislators. However, the term “printed” has been interpreted to mean the bill can be in mock-up form, photocopied and placed on the desks of members of the Assembly and Senate for their review.

Because this language was not changed by the ballot measure, while that existing process can continue in the Senate and Assembly, Proposition 54 adds the additional requirement that the amended bill must now be published on the Internet, which usually occurs the evening of the same day that the bill was amended.

But now these requirements must be met at least 72 hours prior to the floor vote. When does the clock start ticking? When all three provisions (printed, distributed to members, and posted on the Internet) are met? Again, this provision applies to the “final form” of the bill. When do legislators determine that the bill is in its final form?

Normally, a bill only returns to its house of origin when any amendments were made in the second house.

Some have raised question whether the ballot measure actually requires a bill to be available to the public for 72 hours. The new constitutional language requires the bill to be “published on the Internet,” but does not specifically require it be made public. However, it would seem that being published on the Internet, by definition, makes it available to the general public.

–Fifth, the ballot measure provides only a limited exception to this rule. That happens in the event the governor declares an emergency and submits a letter to the Legislature to that effect. That would allow the house considering the bill to act and dispense the notice requirement with a two-thirds vote.

A question left unanswered by Proposition 54 is what happens to a bill that passed its first house “in its final form” without 72 hours notice (i.e., it did not get amended in the other house) and then passed to the governor?

Will that bill now have to go back to its original house for another vote that complies with the 72-hour notice requirement? Normally, a bill only returns to its house of origin when any amendments were made in the second house.

In terms of the end of session, as well as the house-of-origin deadline, it appears the practical application of Proposition 54 will require all amendments (whether substantive or technical) to have been adopted at least 72 hours prior to the close of the legislative session.

In even-numbered years, that means 72 hours prior to August 31, which is specified in the state Constitution as the adjournment date, with certain exceptions. Only measures that call elections, provide tax levies or appropriations for current state expenses, or contain urgency clauses are exempt from the August 31 deadline. Nonetheless, the bills are still subject to the 72 hours notice requirement.

However, in an odd-numbered year, the mid-September scheduled adjournment date is a matter of the Joint Rules of the Assembly and Senate and can be changed or extended.

In other words, if we assume that the 2017 legislative session is scheduled to adjourn on Friday, September 15 (based upon a similar date from prior years), the two houses could vote to extend that date to accommodate any last-minute bill amendments that would otherwise not comply with Proposition 54.

Proposition 54 will also impact the state budget and the resulting trailer bills. While the Assembly and Senate Budget Committees in recent years have held off-the-floor hearings regarding quickly-amended budget trailer bills, each house will need to ensure that the budget bill, any budget bill junior, and the two dozen or so trailer bills also comply with the 72-hour notice requirement before final passage to the Governor.

We will have to see how the two houses of the Legislature comply with the new requirements of Proposition 54.

Clearly, legislative deadlines will become even more complicated. But we’ll have to wait and see whether Proposition 54 fulfills the proponents’ desire to curb last-minute bill amendments away from public view.
—Ed’s Note: Chris Micheli is an attorney and legislative advocate with the Sacramento governmental relations firm of Aprea & Micheli.